HENRI C. MARCELLUS, APPELLANT,
v.
INGRID PAULE VOLTAIRE, APPELLEE
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Court reversed an incarceration order for child support arrears because the trial court's simultaneous finding of indigency for appellate purposes established the appellant lacked present ability to pay the purge amount.
A trial court's finding of indigency for appellate purposes affirmatively establishes that a defendant lacks present ability to pay a child support purge amount, precluding incarceration.
[1] A trial court's simultaneous findings that a defendant is indigent for appellate purposes and has present ability to pay a child support purge amount are legally inconsis…
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Join FLexlaw to unlock all legal intelligence“The finding of the trial judge that the respondent was indigent for purposes of the appeal affirmatively established that the respondent was indigent and had no present ability to pay the purge amount.”
Supreme Court precedent establishing the legal consequence of an indigency finding in Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985)
Henri Marcellus was found in arrears on child support payments following domestic violence proceedings. The trial court ordered his incarceration base…
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PER CURIAM.
In proceedings subsequent to an action for an injunction for protection against domestic violence, the trial court entered an order adopting and ratifying the findings of a General Master. That order, the subject of this appeal, finds that appellant Henri Marcellus is in arrears in payment of child support, that he has the present ability or assets to pay the purge amount and that he should be incarcerated. Shortly thereafter, the trial court also entered an Order of Indigency finding appellant to be indigent for purposes of appellate filing fee and costs.
While we recognize even from the scant record before this court that the trial court had good reason to find that appellant had been less than cooperative, we none-the-less are compelled to reverse the order under review. In Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985), our supreme court held that “[t]he finding of the trial judge that the respondent was indigent for purposes of the appeal affirmatively established that the respondent was indigent and had no present ability to pay the purge amount.”
On remand the trial court shall conduct a hearing in order to make specific findings on appellant’s present ability to pay the purge amount and may upon appropriate application after notice and hearing also consider modification of the amount of child support if warranted by those findings.
REVERSED AND REMANDED.
HERSEY, GUNTHER and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. Brown, 658 So. 2d 627 (Fla. 5th DCA 1995)…Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985). Accordingly, this ease must be remanded for the trial court to conduct a hearing in order to make a specific finding regarding Brown’s present ability to pay the purge amount. Marcellus v. Voltaire, 649 So. 2d 944, 944 (Fla. 4th DCA 1995). Another ground for reversal of the contempt order is that the trial court did not make any finding that Brown’s failure to pay court-ordered child support was willful. Zebracki v. Zebracki, 648 So. 2d 850, 850-51 (Fla. 4th…
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Margherita Downey v. Downey, 874 So. 2d 734 (Fla. 4th DCA 2004)…at the former wife had the ability to pay the purge, the trial court relied on the former wife’s affidavit of insolvency. Significantly, it is the same financial affidavit upon which the court entered the insolvency order. In Marcellus v. Voltaire, 649 So. 2d 944 (Fla. 4th DCA 1995), the trial court entered a contempt order and incarcerated Marcellus for failing to pay child support. Id. Soon thereafter, the trial court also entered an order of indigency finding Mar-cellus indigent for the purposes of paying…
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Anderson v. Dep't OF Revenue o/b/o Pethy Hamilton, 11 So. 3d 424 (Fla. 4th DCA 2009)…ation. The trial court ratified and approved the report of the hearing officer on June 13, 2008. Anderson timely filed his notice of appeal and the trial court determined that Anderson was indigent for purposes of appeal. In Marcellus v. Voltaire, 649 So. 2d 944 (Fla. 4th DCA 1995) this court determined that the trial court committed reversible error when it entered an order finding that the father was in arrears in payment of his child support obligation, had the present ability to pay, and would be incarc…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)